Michael Wayne Blacknell v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-95-105-CR

MICHAEL WAYNE BLACKNELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 13,673

O P I N I O N

A jury convicted Appellant Michael Blacknell of the offense of attempted capital murder. See Tex. Penal Code Ann. 15.01, 19.03(a)(2) (Vernon 1994). A prior felony conviction for burglary of a habitation enhanced Blacknell's punishment. The jury sentenced him to sixty years' incarceration in the Institutional Division of the Texas Department of Criminal Justice.

Blacknell brings this appeal raising seven points of error. His first and second points complain that the evidence was legally and factually insufficient to prove he entered the victim's residence without effective consent. His third and fourth points challenge the legal and factual sufficiency of the evidence to prove he used the deadly weapon alleged. His fifth point claims the court erred in admitting a prejudicial photograph. His sixth point avers that the court erroneously "stacked" his sentence. His seventh point complains that the court erroneously entered a deadly weapon finding after pronouncement of sentence. We will affirm the judgment.

FACTUAL BACKGROUND

According to the record, Officer David Miller responded to a 911 call from Jewell Spence's residence at 3:42 o'clock, a.m., on November 30, 1994. When he and another officer arrived at her home, they found the back door open. They found Spence sitting in a chair beside the telephone. Her face was bloodied and her lips black and blue. She could not speak.

The record reflects that investigator James Ross arrived shortly after four o'clock. Upon reviewing the crime scene, he determined that an assault on Spence had occurred in her bedroom. He had photographs taken of the bedroom and gathered the bloody pillow and bedding for analysis. He also collected blood and hair specimens from Spence for analysis. After Blacknell's arrest, Ross also collected blood and hair specimens from him under an evidentiary search warrant.

Texas Ranger Fred Cummings testified that he assisted Ross in the investigation. He lifted two latent fingerprints in Spence's home: one by the back door and one from a chest in a second bedroom. Cummings and Ross went to Blacknell's home on December 1. Patricia Wright, Blacknell's roommate, gave Cummings permission to look at the laundry located in the bedroom which she and Blacknell shared. She handed Cummings Blacknell's pants, shirt, and cap. Blacknell confirmed these items were his. Cummings detected a blood stain on the pants. On cross-examination, Cummings agreed that he saw no signs of injury to Blacknell which would have suggested he had been recently involved in a fight. On redirect, he testified that Blacknell could have inflicted Spence's injuries without causing damage to his own hands.

A fingerprint expert identified the fingerprint found on the chest as Blacknell's. A chemist testified that the blood on Blacknell's jeans was consistent with Spence's blood type and not consistent with Blacknell's. The chemist also found that hairs recovered from Spence's bedding were consistent with Blacknell's and not with Spence's. A DNA analyst confirmed these findings.

Dr. Mark Puscas, the emergency room physician, testified about the extent of Spence's injuries. Puscas stated the she had a closed-head injury, significant swelling of the neck which interfered with respiration, and intracranial bleeding which decreased her level of consciousness. These injuries collectively constituted serious bodily injury. Puscas determined that some blunt force trauma caused the injuries. He testified that a fist could have caused the injuries and that whatever inflicted the injuries would be considered a deadly weapon. On cross-examination, Puscas conceded that he could not say that a fist was the object which caused the injuries. He could only determine that "something blunt" caused them.

Spence's son Thomas testified that Spence lived by herself at the time of the assault. He also informed the jury that Spence's ability to take care of herself had been significantly reduced because of her injuries. As a result, the family had to place Spence in a nursing home.

Dr. Tim Maynard, Spence's regular doctor, offered additional testimony regarding the extent of Spence's injuries and her recovery. He gave his opinion that Spence had suffered serious bodily injury and that her injuries were consistent with having been beaten by someone's fists. Maynard felt that whatever weapon inflicted the injuries was a deadly weapon. On cross-examination he conceded that he had no way of knowing what caused the injuries. He testified on re-direct that because Spence suffered no broken bones, it was less likely that a bat or club was used in the assault.

SUFFICIENCY OF THE EVIDENCE

Blacknell's first and second points attack the legal and factual sufficiency of the evidence to prove he lacked effective consent to enter Spence's residence. His third and fourth points claim the evidence is both legally and factually insufficient to support the jury's deadly weapon finding. We will review the legal sufficiency of the evidence to support these issues, then examine whether factually sufficient evidence supports them.

A. LEGAL SUFFICIENCY

In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).

1. Lack of Consent

Where the victim of a burglary does not testify, the State can prove lack of consent by circumstantial evidence. Fearance v. State, 771 S.W.2d 486, 511 (Tex. Crim. App. 1988); Taylor v. State, 508 S.W.2d 393, 397 (Tex. Crim. App. 1974).

The State offered no evidence of a forced entry in this case. Blacknell argues that the evidence of the circumstances surrounding the commission of the offense is legally insufficient to prove the issue of lack of consent. We disagree.

Forcible entry is a circumstance which tends to establish lack of consent. See, e.g., Schenck v. State, 652 S.W.2d 509, 511 (Tex. App. Houston [1st Dist.] 1983, pet. ref'd) (fact that front door of residence "jimmied" considered by court in assessing sufficiency of evidence to show lack of consent). However, it is only one circumstance and does not in and of itself prove or disprove lack of consent. The evidence in this case presented a convincing circumstantial case. The forensic evidence established Blacknell's presence in Spence's bedroom where the assault occurred. This evidence also placed Spence's blood on Blacknell's clothing. Spence suffered serious injuries at the hands of the intruder. She called 911 for help following the attack.

From these circumstances, we conclude that a rational trier of fact could have found that Blacknell entered Spence's home without her consent. See Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995) (evidence that deceased victim found in bed with back door open was sufficient); Lucious v. State, 828 S.W.2d 118, 122 (Tex. App. Houston [14th Dist.] 1992, no pet.) (evidence that theft victim knocked to the ground and her face shoved into the concrete and that she got up bleeding and yelling for help sufficient to support jury's implicit finding that Lucious took her purse without consent). // Thus, the evidence is legally sufficient to support the verdict. We overrule Blacknell's first point.

2. Deadly Weapon

A fist is not a deadly weapon by design but may become so by the manner of its use or intended use. Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983); Tex. Penal Code Ann. 1.07(a)(17)(B) (Vernon 1994); accord Thomas v. State, 821 S.W.2d 616, 619 (Tex. Crim. App. 1991). We must review the evidence to determine if it is sufficient to show that Blacknell's fists were capable of causing death or serious bodily injury in the manner of their use or intended use. See Cooper v. State, 773 S.W.2d 749, 750 (Tex. App. Corpus Christi 1989, no pet.).

Dr. Puscas testified that a fist could have caused Spence's injuries. Dr. Maynard went further and stated that the injuries were consistent with having been beaten by someone's fists. Both doctors concluded that the weapon used to inflict the injuries should be considered a deadly weapon.

Based on this evidence, a rational juror could have found that Blacknell's fists were a deadly weapon in the manner of their use. Cf. Turner, 664 S.W.2d at 87, 90 (where medical examiner failed to testify about cause of death and autopsy report not introduced, evidence insufficient to show fist, hands, or feet was deadly weapon, notwithstanding Turner's stipulation that he caused the victim's death "by striking her with [his] fist, by choking her with [his] hands, and by kicking her with [his] feet). Thus, the evidence is legally sufficient to support the finding. We overrule Blacknell's third point.

B. FACTUAL SUFFICIENCY

When confronted with a factual insufficiency claim, we discard the prism of the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We reverse "only if [the verdict] is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Id.

We consider all the evidence in the record related to the contested issue, "not just the evidence which supports the verdict." Santellan v. State, No. 72,130, slip op. at 8 (Tex. Crim. App. Jan. 29, 1997). We review the evidence tending to prove the issue, "and compare[] it to the evidence which tends to disprove that [issue]." Id. We give appropriate deference to the jury's decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135. We do not set aside the "verdict merely because [we] feel that a different result is more reasonable." Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)).

1. Lack of Consent

In reviewing Blacknell's factual sufficiency challenge, we compare the evidence which tends to prove he entered Spence's home without effective consent with the evidence tending to prove the contrary. If there is no adverse evidence to compare, the evidence logically must be factually sufficient.

We have already determined that the circumstances surrounding the offense were legally sufficient to prove lack of consent. The State's forensic evidence placed Blacknell in Spence's bedroom where the offense occurred and proved that her blood was on his clothing. No evidence to the contrary appears in the record. Blacknell argues that the absence of any evidence of the manner of entry renders the evidence factually insufficient to prove lack of consent. We disagree.

The circumstances surrounding the offense present probative evidence of lack of consent. The absence of evidence of a forced entry provides some probative evidence to support the proposition that Blacknell's entry was consensual. We must give due deference to the jury's conclusions regarding the weight and credibility of the evidence. Clewis, 922 S.W.2d at 133. After reviewing the entire record, we conclude that the verdict is not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 134. Thus, the evidence is factually sufficient to support the verdict. We overrule Blacknell's second point.

2. Deadly Weapon

To review the factual sufficiency of the evidence to support the deadly weapon finding, we compare the evidence tending to support the finding with the evidence which tends to disprove that finding.

Our review of the record reveals the following facts which tend to show that the evidence is factually insufficient to support the deadly weapon finding:

(1) Dr. Puscas could not say that a fist caused Spence's injuries;

(2) Dr. Maynard had no way of knowing what inflicted the injuries; and

(3) Blacknell's hands had no abrasions on them shortly after the commission of the offense.

The record reflects the following facts which tend to support the deadly weapon finding:

(1) Dr. Puscas concluded that a fist could have caused the injuries;

(2) Puscas stated that the object which caused the injuries was a deadly weapon;

(3) Dr. Maynard believed the injuries were consistent with having been beaten by someone's fists;

(4) Maynard also concluded that the object which caused the injuries was a deadly weapon;

(5) The fact that Spence suffered no broken bones makes it less likely that her injuries were caused by an object more solid than a fist; and

(6) Because Blacknell could have caused the injuries without significant damage to his own hands, the absence of abrasions on his hands following the assault does not preclude the possibility that he used them to inflict Spence's injuries.

We must give due deference to the jury's conclusions regarding the weight and credibility of the evidence. Clewis, 922 S.W.2d at 133. After reviewing the entire record, we conclude that the verdict is not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 134. Thus, the evidence is factually sufficient to support the deadly weapon finding. We overrule Blacknell's fourth point.

THE PHOTOGRAPH

In his fifth point, Blacknell argues that the court erred in admitting an unduly prejudicial color photograph of Spence as she appeared when the officers arrived at her house. The picture is an enlargement of a polaroid photograph. It depicts Spence's head and shoulders as she appeared that morning. Blacknell specifically contends that the blurry nature and poor clarity of the photograph render it particularly gruesome and inaccurate. Thus, he argues the prejudicial nature of the exhibit substantially outweighs its probative value. See Tex. R. Crim. Evid. 403.

Rule 403 governs the admissibility of a photograph alleged to be unduly prejudicial. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). Several factors are weighed to determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, including:

the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, whether the body is naked or clothed [,and] . . . the availability of other means of proof and the circumstances unique to each individual case.

Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1257, 131 L. Ed. 2d 137 (1995) (quoting Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991)). If a verbal description of an object or scene is admissible, then a photograph of that object or scene is generally also admissible. Emery, 881 S.W.2d at 710. The court's decision to admit a photograph will not be reversed unless an abuse of discretion is shown. Matamoros, 901 S.W.2d at 470. As long as the ruling lies "within the zone of reasonable disagreement," it will be affirmed. Id.

In this case, Blacknell complains of only a single color photograph. The exhibit is somewhat gruesome in that it depicts a trail of blood from Spence's mouth, other blood smeared about her face, and bruises in and around her mouth and on her face. The photo is a close-up of Spence's head. She is clothed in the photograph.

Testimony surrounding the nature and extent of a victim's injuries is clearly relevant and admissible. Miller offered testimony to this effect, as did the physicians who treated Spence. The photograph in issue aids the jury in its understanding of the nature and extent of the injuries. See Emery, 881 S.W.2d at 710.

While the blurry nature of the photograph diminishes its probative value to a certain degree, we cannot say that the court's decision to admit the exhibit lies outside "the zone of reasonable disagreement." Matamoros, 901 S.W.2d at 476. Thus, we conclude that the court did not abuse its discretion in admitting the photograph. We overrule Blacknell's fifth point.

THE "STACKED" SENTENCE

Blacknell complains in his sixth point that the court erred in orally amending his sentence after formal pronouncement by ordering only moments later that the sentence run consecutively to a prior sentence he received in a parole revocation hearing.

Blacknell relies on Ex parte Vasquez for the proposition that the court must order the cumulation of sentences at the time of the pronouncement of sentence if such cumulation is to be effective. Ex parte Vasquez, 712 S.W.2d 754, 755 (Tex. Crim. App. 1986); Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 1997). In Vasquez, the court ordered cumulation of the sentence three days after it was pronounced. Id.

However, in a case with a fact situation similar to Blacknell's, we decided that such an order made during the sentencing hearing but after the oral announcement of the sentence was made at the time of pronouncement for purposes of the rule announced in Vasquez. See Richardson v. State, 832 S.W.2d 168, 173 (Tex. App. Waco 1992, pet. ref'd).

Because the cumulation order was made during Blacknell's sentencing hearing, it was made at the time of the pronouncement of sentence. Id. Thus, we overrule Blacknell's sixth point.

THE ENTRY OF THE DEADLY WEAPON FINDING

In his last point, Blacknell argues on similar grounds that the court erroneously entered the deadly weapon finding after pronouncement of sentence. We disagree.

Because the deadly weapon finding was made during Blacknell's sentencing hearing, it was made at the time of the pronouncement of sentence. Id. We overrule Blacknell's seventh point.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed March 5, 1997

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